5.  The first applicant was born in 1975 and lives in Tarnów. The second applicant was born in 1955 and lives in Lisia Góra. The first applicant is a journalist working for TEMI, a local weekly newspaper published in Tarnów. The second applicant is the editor-in-chief of that weekly.
6.  TEMI published a series of six articles entitled “Marek C. in episodes” which were written by the first applicant. Marek C. [M.C.] was a local councillor and vice-chairman of the Tarnów Municipal Council. In the issue of 28 January 2004 the weekly published the first article about M.C. It began as follows:
“M.C. is certainly a colourful character. This Tarnów councillor, serving his third mandate on the municipal council, tried to become the President of Poland and a member of the Senate. Currently, he is involved in many court cases and is again becoming the subject of scandals.
Everyone remembers well that at the beginning of winter Councillor C. was involved in the eviction of two pregnant women from a flat located at ... Street in Tarnów. Everyone also remembers the explanation of C. who described one of the evicted women as running a shebeen and suggested that she together with her daughter were women of easy virtue. ...
People don’t want to speak about C. And if they do, they speak about him as if he were dead – either well or nothing. Otherwise they risk to be taken to court and charged with defamation or breach of his personal rights. The list of persons who have met him in a courtroom is long and new names appear on it all the time. ...”
In the subsequent part of the article the first applicant described M.C.’s career as a local politician. Basing herself on information received under conditions of anonymity from M.C.’s former collaborators and fellow councillors, she portrayed him as an overbearing, self-centred and ruthless person. She further stated that M.C. had been involved in many, mostly unsuccessful, political ventures and after every lost election he created a new political grouping.
7.  In the issue of 4 February 2004, the weekly published the second article in the series. It read as follows:
“For years the activity of M.C. has been based on balancing on the edge of the law, and even on breaking it. C. is most frequently accused of denigrating people and undermining their authority and of disseminating untruthful information about them. This includes information which suggests corruption links between people whom C. dislikes for reasons exclusively known to him. And that is how the articles and paragraphs of the Criminal Code which are being breached by councillor C. – without much notice on his part – proliferate.
Colleagues on the [municipal] council
People still don’t want to speak about C. Are they afraid? Of what? Z.J., formerly for many years chairman of the Tarnów Municipal Council, refused to speak. Similarly, J.R., former mayor, did not want to say anything. (...)
However, A.K., the current chairman of the Municipal Board spoke:
“M.C. is a very touchy person, often he does not weigh his words. Even if a mild opinion is expressed about him, he still considers himself to be offended. At the same time he uses words which in the language of people with at least a minimum of good manners are considered inappropriate. I said already once to Mr C. that his character was not oriented on construction, but on destruction. (...)”
Mayor M.B. does not want to comment on councillor C.’s behaviour. He says that not because he is afraid, but because he thinks that there is nothing to comment on:
“Cooperation with this councillor is entirely out of the question. From his part there is only constant criticism, attack, and most frequently without any order, repetition of the same arguments. Mr C. criticises everything and all the time. ...
Desk for the councillor M.C. has ambitions and plans. He wants to become the President of Poland, or mayor of Tarnów, or a member of parliament. And if there are no elections, then he applies for the job of director of the Żabno Cultural Centre. There also without success. Everywhere and on every occasion he promises something. Up to now it would be difficult to find in his CV any positive achievements or just partial fulfilment of his various promises, including the electoral ones.
Sometimes C. attempted to get other “inferior” positions, compared to a chair in the presidential palace. For example, the mayor’s plenipotentiary for the establishment of a university in Tarnów. It was being said that an agreement on the taking of this position by C. would be one possible way of calming the political excesses of the councillor. He did not get the position. Unofficially it was being said that similar arguments [were raised] when C. attempted to get another job, namely that of deputy head of the municipal police in Tarnów. This also failed. ... And could it be that his venomous aversion to the media, and in particular to the largest weekly in the region, is the result of its refusing his offer to become the editor in chief of the paper, or is that just a coincidence?
Councillor – offender?
Recently C. again lost a court case; this time against a journalist of the local Radio Maks, M.K. The case concerned allegations made by councillor C. against the Tarnów radio journalist. It is interesting that despite having found C. guilty and additionally ordering him to pay PLN 500 to a children’s home, the court conditionally discontinued the proceedings for a probationary period of one year, not sentencing him. A sentence for Marek C. would have meant the loss of his position as a councillor.
That was obviously not the first proved case of C.’s breaking the law. It is just worth recalling that in 2001 the State Electoral College rejected his financial report from the presidential campaign. As a consequence of the breach of the electoral law, the Warsaw Regional Court ordered the forfeiture of some donations paid to C.’s electoral committee.
The apex of the offending activities (apogeum przestępczych poczynań) of Marek C. was the recent disclosure of confidential information from court proceedings instituted against C. by Radio Maks. It turns out that the hearing was conducted in private.
“Dissemination of any information from such a hearing without authorisation is an offence under Article 241 § 2 of the Criminal Code. This offence entails mandatory prosecution and is subject to a penalty of imprisonment not exceeding two years, a fine or a restriction of liberty” B.O., spokesperson for the Tarnów prosecution service, told TEMI.
The information that a hearing is conducted in private is announced at the beginning of the hearing by a judge who is also required to inform the persons present at the hearing of the penalties to which they would be liable for dissemination of information obtained that way. We are in the possession of a document made publicly available by C. in breach of the law; he also does so on the internet site of his grouping, which has the surprising name – in the context – of “Honesty”. Our requests for a discussion about all court cases in which M.C. is involved were rejected by the main party concerned.”
8.  The article was accompanied by excerpts from a statement of the Tarnów Municipal Council of 11 September 2002 which was signed by 34 councillors. It read as follows:
“It is in the public good of the inhabitants of the city of Tarnów that they learn about the arrogance and dishonesty of the local councillor, Mr M.C. A person who does not respect the dignity of a fellow human being is not worthy of holding such a prestigious position as councillor.
The Tarnów Municipal Council strongly disapproves of the behaviour of councillor M.C. who constantly offends other councillors, lowers their dignity and thus grossly violates moral norms and the obligations of a councillor.”
9.  On an unspecified date in 2004 councillor M.C. lodged with the Tarnów District Court a private bill of indictment against the applicants, charging them with defamation under Article 212 §§ 1 and 2 of the Criminal Code. He referred to TEMI’s issue of 28 January 2004 in which the first part of the article “Marek C. in episodes” with the statement “we will find out next week whether he may be referred to as an offender” was published. He also referred to the issue of 4 February 2004 in which the second part of the article was published and included the statements “recently C. again lost a court case; this time against a journalist of the local Radio Maks, M.K (...) that was obviously not the first proved case of C.’s breaking the law. It is just worth recalling that in 2001 the State Electoral College rejected his financial report from the presidential campaign. (...) The apex of the offending activities of Marek C. was the recent disclosure of confidential information from court proceedings instituted by Radio Maks against C.” M.C. alleged that the applicants had insinuated that he was an offender. These statements had lowered him in the eyes of the public and undermined the public confidence necessary for the discharge of his duties as a councillor and vice-chairman of the Tarnów Municipal Council.
10.  In the proceedings before the trial court the first applicant stated that as a journalist she was entitled to write a critical article about M.C. and that the charge against her was groundless since she had put a question mark on the statement concerning the offending activities of the councillor. She and the second applicant had had information from the radio journalist M.K. about the criminal proceedings against M.C. which had been conditionally discontinued. The first applicant further stated that the article was reliable since the spokesperson for the prosecution service had stated that disclosure by a private prosecutor of information originating from a hearing held in private constituted an offence.
11.  The editor-in-chief (the second applicant) corroborated at the trial the statements of the first applicant. He stated that the impugned article was not the first material about MC. indicating that his behaviour had been bordering on an offence. M.C. had been a defendant in many court cases and had participated in the eviction of two pregnant women. The second applicant emphasised that the impugned article had not contained the term “offender” but “offending activity”.
12.  On 24 June 2005 the Tarnów District Court gave judgment. It convicted the applicants of defamation committed through the mass media under Article 212 § 2 of the Criminal Code. It held that on account of the publication in the issue of 4 February 2004 of the article “Marek C. in episodes (2)” the applicants had alleged that M.C. had broken the law and that his actions had been of an offending nature. The applicants were each sentenced to a fine of PLN 500 (aprox. EUR 125).
13.  The District Court found as follows:
“Having regard to the established facts it is reasonable to assume that the acts of the accused Dorota Jucha and Tomasz Żak matched the features of the offence of defamation in its aggravated form specified in Article 212 § 2 of the Criminal Code.
In the light of the wording of Article 212 it is generally prohibited to speak badly about another person without a legitimate interest, and the allegation levelled is an imputation when it concerns the behaviour of the defamed person or his characteristics and amounts to imputing to such a person the commission of an offence or failure to fulfil his duties.
The entire significance of the article entitled “Marek C. in episodes (2)” published on 4 February 2004, which may be summarised by reference to its subtitle “Councillor – offender?” came down to quoting a sequence of events which were to present the private prosecutor as an offender (przestępca). Speaking of somebody as an offender has a clearly pejorative meaning for public opinion; it may even be said to be “utterly disgraceful”. The fact that the allegation was not categorical, and that in the present case the subtitle Councillor – offender was followed by a question mark, is not relevant so far as concerns the features of the offence of defamation (as submitted in particular by Dorota Jucha). (...)
The information disseminated by the accused Dorota Jucha and Tomasz Żak was objectively capable of lowering the private prosecutor in the eyes of public opinion and undermining public confidence in his capacity for a given position, occupation or type of activity.
Although an imputation does not have to be based on a concrete fact and may take the form of a generalised assessment of another person, the article “Marek C. in episodes (2)” included information which was intended to give the impression that the private prosecutor’s activity could be considered offending. The statements included in the article were either untrue (which is relevant to the question whether the accused can rely on the defence of justified criticism) or even if completely true they were distorted in such a way that we may not speak of fair reporting, and thus the “rightness” of the accused’s behaviour.
Assessing the particular fragments of the publication it should first be stated that the State Electoral College’s rejection of a financial report from the presidential campaign in which M.C. had actively participated was meant to be evidence of the [private] prosecutor’s offending activity (przestępcza działalność). The following words were put under the subtitle Councillor – offender: “that was obviously not the first proved case of C.’s breaking the law. It is just worth recalling that in 2001 the State Electoral College rejected his financial report from the presidential campaign. The Warsaw Regional Court ordered the forfeiture of some donations paid to C.’s electoral committee. The apex of the offending activities of Marek C. (apogeum przestępczych poczynań Marka C.)...”. In this context the implication of the article is that M.C. committed the offence of breaking the provisions of the electoral law. This allegation is not true.
In the light of the quoted judgment [of the Supreme Court] M.C. is not an offender because he was not convicted under the said law [Law of 27 September 1990 on Elections of the President of the Republic of Poland], it was not “his” financial report but the report of his electoral committee that had been rejected, which is a sanction of an administrative and not of a penal nature, and the forfeiture of some donations has nothing to do with forfeiture as a penal measure under the Criminal Code and is a civil-law consequence of the breach of the electoral law. Thus, to say that those activities have the features of an offence departs from the truth.
In speaking of the apex of the offending activities of Marek C. the accused were imputing to him an offence under Article 241 of the Criminal Code [unauthorised disclosure] having no grounds to do so, since at that time no proceedings which could give rise to a reasonable suspicion [that M.C. had] committed [that] offence were pending. Although it was objectively true that the private prosecutor had written a letter to the president of Radio Maks in which he referred to the circumstances regarding the pending criminal proceedings conducted in private, the statement that that act was an offence constituted an imputation within the meaning of Article 212 of the Criminal Code. (...) It is a court which decides whether the law was broken, and whether an offence was committed. The accused when formulating [their] categorical statement invoked in its support a declaration by B.O., spokesperson for the Tarnów prosecution service, who set out the legal characteristics of the offence specified in Article 241. The information conveyed [by the accused] with reference to the [private] prosecutor’s behaviour which was said to constitute “the apex of the offending activities”, while relying on the unquestionable authority of the prosecution service, distorted the conditional and merely informative nature of the spokesperson’s declaration, [thus] giving the impression that the [private] prosecutor had committed that offence.
As regards the statement contained in the article “recently C. again lost a court case”, which referred to the judgment in which the District Court conditionally discontinued proceedings against Marek C. in respect of one of the charges, it should be noted that the offence [of defamation] may either take the form of making untrue allegations or distorting true circumstances. Although there is no doubt that at a certain stage of the proceedings such a judgment was indeed given (it was not yet final then), the form in which that information was presented immediately after the subtitle “Councillor – offender?” distorts the nature of the conditional discontinuation of the proceedings. A judgment conditionally discontinuing the proceedings is not a conviction. Even accepting the truthfulness of this allegation, the actions of the accused Dorota Jucha and Tomasz Żak could have corresponded to the features of adefence specified in Article 213 § 2 of the Criminal Code only in so far as the making of that allegation could have been justified from the point of view of the right to criticism. The criteria which should be met by such criticism were indicated in the Supreme Court’s judgment of 28 September 2000 (...). [The criticism] should be socially justified and desirable, be made in the public interest and be fair and accurate. However, fairness and accuracy were missing from the information presented by the accused in their article, although as journalists they were under the duty referred to in section 12 § 1(1) of the Press Act to act with particular diligence. This is shown by the lack of objectivity in the information presented, partiality, inaccuracy, the creation of a particular psychological atmosphere surrounding the publication or at least the incomplete presentation of the circumstances of the case resulting from failure to state that the impugned judgment was not final, [and] that the conditional discontinuation concerned one of the charges, while in respect of other [charges] the private prosecutor was acquitted.”
14.  The applicants appealed, arguing that they had acted in the public interest when publishing the article about the local councillor. They emphasised that the term “offending activities” had been used in the broader sense of “breaking the law” and not in the legal meaning of the word “offending”. They were aware of the provocative nature of the statement “Councillor – offender” but had weakened it by placing a question mark after it. They had exercised their journalistic freedom, which allowed them to have recourse to some degree of exaggeration. Further, they submitted that the District Court had admitted some of the evidence but failed to take other evidence into account, namely articles from the German press concerning M.C.’s travelling abroad with his daughter without the mother’s consent and the District Court’s judgment in case no. II K 807/03 convicting the applicant of defamation in respect of the Tarnów cable television and its journalists.
15.  On 7 October 2005 the Tarnów Regional Court upheld the first‑instance judgment. The applicants were ordered to reimburse the costs of the appeal proceedings in the amount of PLN 50.
16.  The Regional Court considered in turn the allegations made about the private prosecutor by the accused. As regards the court case brought by a local radio journalist against M.C., the Regional Court noted that by a judgment of the Tarnów District Court of 15 January 2004 M.C. had been found guilty of defamation and that the court had conditionally discontinued the proceedings. However, the applicants had failed to state that the judgment was not final. On appeal M.C. had been acquitted of defamation.
17.  As regards the rejection of the financial report, the Regional Court observed that the decision of the Warsaw Regional Court on forfeiture of some electoral donations had not established the personal responsibility of M.C. in this respect or that an issue of his criminal responsibility had arisen.
18.  Subsequently, the Regional Court assessed the statement about “the apex of the offending activities of Marek C.” which had been made in the context of unauthorised disclosure of information from the defamation proceedings brought by a journalist of Radio Maks against M.C. The information at issue was a statement made by the chairman of Radio Maks (K.Ł.) during a hearing held in private. The Regional Court found that the statement of the chairman concerned only M.C.’s involvement with that radio and as such had been of marginal importance. However, the applicants had presented it as the apex of M.C.’s offending activities.
19.  The Regional Court found, in so far as relevant:
“That offending activity amounts then to one not final judgment finding the private prosecutor guilty in respect of one charge in case no. II K 374/03, the rejection of C.’s financial report from the presidential campaign and, in effect, the fact that C. had quoted a certain statement made by witness K.Ł. at the hearing in case no. II K 374/03.
In the Regional Court’s view the [alleged] offending activity of the private prosecutor in this case was not really presented. Counsel has referred in his appeal to articles from the German press, which indeed depict the [private] prosecutor in an exceptionally negative light. However, it should be noted that this case was not at all mentioned in any of the articles published at that time about the private prosecutor.
Counsel subsequently evoked the final judgment of the Tarnów District Court in case no. II K 807/03 where the private prosecutor, appearing as a defendant, was eventually found guilty of having committed an offence under Article 212 §§ 1 and 2 of the Criminal Code. However, it should be remembered that this judgment was given only in May 2004, and became final on 19 November 2004. Thus, at most the defendants were entitled to mention in their article the fact that another set of criminal proceedings against the private prosecutor was pending, but that is not what they did. However, constructing on that basis a thesis that the defendant [M.C.] carries out offending activities would clearly be at least premature. (...)
The assertion of the defendants that first the statement “offending activities” is much milder than the statement “offence” because it implies a certain supposition, and that moreover that term is supposed to have not only a legal but also a common meaning (as it concerns lawbreaking not necessarily established in a judgment of the criminal court) is a false thesis. Such a statement explicitly indicates that the [private] prosecutor committed offences, and that he had been found guilty of them by a final court decision or even final court decisions, if in effect the accused used the phrase “the apex of the offending activities”. However at that time ... the private prosecutor had not been found guilty of any offence (obviously by a final judgment). The statement that the [private] prosecutor again lost in court against M.K. already indicates that earlier (even leaving aside the fact that the judgment was not final) he had lost some criminal cases. The subtitle “Councillor – offender?” used by the accused in the articles should be recalled in this respect. The question mark, which was supposed to diminish the significance of that statement ... in the context of subsequent information concerning the [private] prosecutor, was in fact merely a technique of social engineering suggesting that the accused was only putting the question whether C. was an offender without prejudging the above. However, statements which they used in the subsequent part of the article had the de facto effect that they instantly provided answers in this respect. Moreover for the offence of defamation a categorical form [of statement] about some dishonourable fact is not necessary. ...
There is no doubt that the accused in the present case did not display accuracy in gathering material concerning the private prosecutor (at least in respect of the impugned article). The information could have been verified as true or false. By employing the term “offending activities” the accused resorted to abuse and untruth. Journalistic freedom includes the possibility of resorting to exaggeration, or even provocation. The right to free expression is one of the basic human rights. It is guaranteed by the European Convention on Human Rights (Article 10) and the Constitution of the Republic of Poland (Article 54). The freedom of the press is a main aspect of that right. It is one element of an effective democracy (public scrutiny). However, the right to criticism and free expression may not be transformed into imputations against anyone, including a politician. ...
The limits of criticism as regards politicians and their actions are definitely wider than in respect of other persons. However criticism is not unlimited. It is one thing to consider inappropriate public or private behaviour of the [private] prosecutor, but in the case where de facto a conclusion is formed that the [private] prosecutor is in reality a person having problems with the law, an offender with a significant record of criminal cases (the court returns once more to the expression “the apex of the offending activities”), we cannot speak of acceptable criticism assessing that term in the context of freedom of expression. ... The right to criticism as regards persons holding public functions cannot be exercised in such a manner as to infringe the good name or reputation of the criticised person (judgment of the Supreme Court of 28 March 2003, IV CKN 1901/00)...”.
20.  The Regional Court’s judgment was served on the applicants’ lawyer on 2 November 2005.